Balancing Constitutional Rights: The Origins and Meanings of by Jacco Bomhoff PDF

By Jacco Bomhoff

ISBN-10: 1107044413

ISBN-13: 9781107044418

The language of balancing is pervasive in constitutional rights jurisprudence world wide. during this ebook, Jacco Bomhoff deals a comparative and ancient account of the origins and meanings of this talismanic type of language, and of the criminal discourse to which it's principal. modern dialogue has tended to work out the expanding use of balancing because the manifestation of a globalization of constitutional legislations. This booklet is the 1st to argue that 'balancing' has continuously intended noticeably various things in several settings. Bomhoff makes use of unique case reviews of early post-war US and German constitutional jurisprudence to teach that a similar precise language expresses either biting scepticism and profound religion in legislations and adjudication, and either deep pessimism and excessive aspirations for constitutional rights. An realizing of those considerably varied meanings is vital for any evaluate of the paintings of constitutional courts this present day.

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Extra resources for Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse

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Hey were concerned, in other words, with two orthodoxies. hese orthodoxies, importantly, did not only prompt two different replacement projects, each with a diferent role for balancing, but also two diferent conceptions of legal formality and its opposites; conceptions that still haunt the way we understand balancing today. 2. ‘Scientiic law’ and legal formality First, though, the basic contours of the received, shared, image of classical orthodoxy and of its association to legal formality require some further exposition.

For the purposes of this study, that constituency is conined to what Marc Galanter has called ‘the higher reaches’ of the law ‘where the learned tradition is propounded’. h is means especially judges at higher courts, the legal scholarly community and leading advocates. Legitimacy, as used here, is also an abstract concept, assessed on local standards by a local audience. See further Galanter (1974), p. 147; Summers (1978), p. 716; Bell (1986), p. 46; Bobbitt (1989), p. 1239; Fallon (2005). Questioning a global age of balancing 23 in the legal order.

Hey were concerned, in other words, with two orthodoxies. hese orthodoxies, importantly, did not only prompt two different replacement projects, each with a diferent role for balancing, but also two diferent conceptions of legal formality and its opposites; conceptions that still haunt the way we understand balancing today. 2. ‘Scientiic law’ and legal formality First, though, the basic contours of the received, shared, image of classical orthodoxy and of its association to legal formality require some further exposition.

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Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse by Jacco Bomhoff


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